FIRST PRINCIPLESConstitutional Matters: First Amendment

2011 (September Term)

United States v. Barberi, 71 M.J. 127 (the First Amendment bars the government from dictating what we see or read or speak or hear, but the freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children; thus, speech that falls outside of these categories retains First Amendment protection). 

(four electronic images depicting appellant’s stepdaughter that were not child pornography within meaning of the Child Pornography Prevention Act constituted constitutionally protected speech, and the government may not suppress lawful speech as the means to suppress unlawful speech). 

(under appropriate circumstances, conduct that is constitutionally protected in civilian society could still be viewed as prejudicial to good order and discipline or likely to bring discredit upon the armed forces).

2008 (September Term)

United States v. Forney, 67 M.J. 271 (that the possession of virtual child pornography may be constitutionally protected speech in civilian society does not mean it is protected under military law). 


(while the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections; speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command; if it does, it is constitutionally unprotected; in this case, appellant’s receipt and possession of virtual child pornography disgraced him personally and compromised his fitness to command the obedience of his subordinates). 


2008 (Transition)

United States v. Wilcox, 66 M.J. 442 (the First Amendment provides that Congress shall make no law abridging the freedom of speech; this protection permits the expression of ideas, even the expression of ideas the vast majority of society finds offensive or distasteful; the sweep of this protection is less comprehensive in the military context, given the different character of the military community and mission).

(the CAAF’s jurisprudence on charged violations of Article 134, UCMJ, involving speech recognizes the importance of the context of that speech; consistent with the focus on context necessary to establish a violation of Article 134, UCMJ, while speech that would be impervious to criminal sanction in the civilian world may be proscribed in the military, the CAAF has long recognized that when assessing a criminal violation implicating the First Amendment, the proper balance must be struck between the essential needs of the armed services and the right to speak out as a free American; necessarily, the CAAF must be sensitive to protection of the principle of free thought; prior to applying this balancing test to a charged violation of Article 134, UCMJ, involving speech, two threshold determinations must be made:  first, the speech involved must be examined to determine whether it is otherwise protected under the First Amendment, and second, the government must have proved the elements of an Article 134, UCMJ, offense).


(no one disputes that servicemembers enjoy some measure of the right to free speech granted by the First Amendment; however, the right to free speech is not absolute, and some speech –- e.g., dangerous speech, obscenity, or fighting words -- is not protected by the First Amendment, regardless of the military or civilian status of the speaker). 


(the test for dangerous speech unprotected by the First Amendment in the civilian community is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent; it is a question of proximity and degree; under the standard applicable to the civilian world, clear and present danger extends to speech directed to inciting or producing imminent lawless action likely to incite or produce such action).


(a lower standard for dangerous speech unprotected by the First Amendment pertains in the military context, where dangerous speech is that speech that interferes with or prevents the orderly accomplishment of the mission or presents a clear danger to loyalty, discipline, mission, or morale of the troops). 


(it is clear that additional burdens may be placed on First Amendment rights in the context of the military, given the different character of the military community and mission; thus, no one questions that deference must be given to military authorities’ determination that military needs justify particular restrictions on the First Amendment, and that military commanders may enact regulations and take administrative actions that place burdens on, or exact administrative consequences for, speech, expression, and the exercise of religion that would not pass constitutional muster in the civilian context). 


(for any offense charged under Article 134, UCMJ, clauses 1 or 2, the government must prove:  (1) that the accused did a certain act, and (2) that the act was, under the circumstances, to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces; in the context of the First Amendment, in order to meet the second element for conduct charged under a prejudice of good order and discipline theory, the prosecution must show a reasonably direct and palpable connection between an appellant’s statements and the military mission; a direct and palpable connection between speech and the military mission or military environment is also required for an Article 134, UCMJ, offense charged under a service discrediting theory). 


(if an accused’s speech is otherwise protected by the First Amendment, and if a reasonably direct and palpable connection between the speech and the military mission or military environment is established, only then need an appellate court determine whether criminalization of that speech is justified despite First Amendment concerns; ultimately, an appellate court must weigh the gravity of the effect of the speech, discounted by the improbability of its effectiveness on the audience the speaker sought to reach, to determine whether the conviction is warranted; where the record does not establish a reasonably direct and palpable connection between the speech and the military at all, let alone the military mission or military environment, the balancing test is mooted by the legal insufficiency of the charged offense). 


United States v. Pope, 63 M.J. 68 (an Air Force recruiting regulation prohibiting sexual harassment of recruits did not impermissibly curtail a recruiter’s First Amendment rights to expression; while intimidating, hostile, or offensive speech may be tolerated in civilian society, in the armed forces, other considerations also come to bear; restrictions on speech may exist that have no counterpart in civilian society; the right of free speech in the armed services is not unlimited and must be brought into balance with the paramount consideration of providing an effective fighting force for the Country’s defense; proper relations between recruiters and applicants in the armed forces are indispensable in attracting young people to serve their country and in maintaining military discipline; intimidating, hostile, or offensive conduct of a sexual nature by recruiters drives potential applicants away from military service and undermines the effectiveness of the armed forces).  



United States v. O'Connor, 58 MJ 450 (this Court has long recognized that the First Amendment rights of civilians and members of the armed forces are not necessarily coextensive; at the same time, however, this Court must ensure that the connection between any conduct protected by the First Amendment and its effect in the military environment be closely examined).

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